of sleep magazine and tony mauro of the national law journal, discussing the individual mandate. in and out or we will talk to professors akhil amar and stephen presser. and your phone ♪ ♪ host: they two of the supreme court's health care debate. yesterday, is the individual mandate attacked? today, is the mandate constitutional? c-span will continue its coverage, bringing you the sights and sounds from the court. we will air the oral arguments at about 1:00 p.m. eastern time. we'll get to yesterday's proceedings and what to look for today in just a minute. first, breaking news out of syria this morning.

the associated press reported in that syria has accepted a plan to end the bloodshed in that country, including a ceasefire in exclusive talks about a political solution. on the domestic front, fed chairman ben bernanke sent the stock market rising yesterday when he said lower interest rates will stay in place for years. ben bernanke speaking today, giving a lecture at one of the colleges here in town, george washington university. we will have coverage of that. go to c-span.org. in the senate today, they will take up a debate over oil and gas subsidies. republicans agreed to go forward with that debate, thinking it is a chance for them to highlight rising gas prices on president obama's watch. in the house, the republican proposal onet wednesday and thursday.

the house yesterday was supposed to vote on a 90-day extension for the highway transportation bill. it decided not to after democrats opposed that. also, front-page of "the new york times" this morning, alex with a new poll finding support for the war in afghanistan has diminished further. 69% of those surveyed said the united states should not be at war in afghanistan. we are turning our attention now to the supreme court and what happened yesterday and what to look forward to today. we have two reporters joining us. dahlia lithwick, "slate magazine" senior editor and tony mauro, supreme court correspondent with the national law journal. both of you were in the court yesterday. tony, what were some of the highlights? guest: yesterday's session was

devoted to a technical issue about whether the court can even rule on the constitutionality of the affordable care act. the judiciary, like congress, is limited by the constitution on what it can rule on, what it can deal with. in this case, there's a law that congress passed in 1867 that limits the court's jurisdiction to rule on taxes -- challenges to taxes when the taxpayer has not paid the tax yeah. that's kind of a convoluted way of saying it. i have talked to two former irs commissioners who say this is a very important law. if you're going to have an orderly collection of taxes in the united states, you cannot have taxpayers running to court to challenge of the tax laws before they pay the taxes.

otherwise, if a taxpayer can delay paying taxes for a week or a year, they will do it. they will go to court. how does this apply to this case? the affordable care act requires individuals to buy health insurance. if they do not, there is a penalty. the penalty is paid through your income taxes. is it a tax in a way that would bar the supreme court from even ruling on the constitutionality of the lot or isn't in it? that was the big debate. i think we both came away thinking that the court does not view it as a bar or a provision from their ruling on the merits of the case. host: that was the consensus?

guest: i think so. in some ways, it was a nice portal of what will be three days of sometimes over heated shouting. to spend 90 minutes on the first 19th century tax law that creates a bar for the court. a very technical discussion. this is the court doing what the court does best, reading the statute, grappling with the text, and really soul-searching on whether or not this is the moment for the court to dive into this case. i agree with tony. i agree with almost everyone in there. more importantly, this cannot be a bar to the court's really

getting to the merits, which they will do today. host: let's listen to a couple of the justices. here is justice breyer, talking with the court-appointed attorney, robert long. [audio clip] >> congress has no real used the word "tax." it says penalty. this is not in the internal revenue code, but for purposes of collection. why is this a tax? >> there are penalties in the internal revenue code that you really could not say are related in any close way to some other tax provision. there is a penalty discussed in the briefs per selling diesel fuel that does not comply with epa's regulations. there are all kinds of penalties in the code.

host: tony mauro, what did you hear from that exchange? guest: it's sort of a semantic debate. walks like a duck, quacks like a duck. they might not have used the word "tax," but it is a tax. in the early part of this, the obama administration wanted these challenges to go away, so they viewed it as a tax. then they decided the word "tax" was not very appealing. that's why the court appointed oof bob long. host: is that unprecedented? guest: that usually happens. you do reach out and appoint

someone. long did aa l bob masterful job. also, the severability issue. in many ways, both parties agree on critical issues. the court, again, has to reach out and asked someone to argue it. and the clip you just played, it really does show the way in which the obama administration has had to take this type of position, where they have to toggle between calling this a tax and a penalty, depending on which argument they are making. host: i want to show the exchange between justice samuel alito and the attorney, donald verrilli on this. [audio clip] >> today you are arguing the penalty is not a tax. tomorrow you'll be back and you will be arguing that the penalty is a tax. has the court ever held that

something that is a tax under the constitution is not a tax under the anti-injunction act? >> no, but the court has held that something can be -- the nature of the inquiry that we will conduct tomorrow is different from the in nature of the inquiry we will conduct today. host: was that satisfactory to alito? toltoledo guest: the solicitor general's answer was plausible. it does not say the word tax. for tomorrows purposes, it does matter. i do think it goes back and

forth to what tony says. there was a real political resistance to calling this a tax. that's having a real, absolutely substantial legal implications in the case. host: some are saying today is the big day. yesterday was technical. today is the super bowl for nerds, as i've heard some people say. on capitol hill, people are up there already. they have lined up to get inside. people are protesting outside, opposed, and in support of this legislation. tony mauro, set up today. guest: today is the big argument. as one of the lawyers is challenging the law said, this is the heart of the law, the individual mandate, the

requirement that every american, with some exceptions, must buy a minimum level of health insurance or else pay a penalty. the purpose of that was to sort of broaden the base of revenues so insurance companies will have some money coming in to pay for the other benefits of the law. without this heart and soul of the law -- the debate tomorrow will be whether the law can survive at all. the issue here is whether this requirement to buy insurance is constitutional under the enumerated powers of congress. the commerce clause power, the power to regulate commerce, the opponents of this loss say this is not commerce. a decision not to buy insurance

say you are not entering commerce. how could congress regulate it? there's also the taxing power, which we were mentioning. the government has said it has the power to enact this kind of law based on that, and also on the necessary and proper clause, which is sort of a catchall phrase in the constitution that says congress can enact laws that are necessary and proper to enact all the other duties. the administration has a number of justifications for this law. each one of them probably will be discussed at some length today. host: we will be airing the oral arguments at 1:00 p.m. eastern time, around the time the court releases them to the public. you will be able to tune into c- span3 to listen to what the

justices had to say about the individual mandate, and also c- span radio, and c-span.org. on the individual mandate, there are a lot of partisan opinions about this. here's another poll in "the new york times" today showing how the american people break down on the issue of the individual mandate. further down on the poll, when it comes to requiring all americans to have health insurance coverage by 2014, 51% disapprove. 45% approve. when you look at other parts of the law -- overwhelmingly popular. pre-existing conditions, children to stay on the current policies, offering discounts. those are more than 50%. people like those parts of the bill. this is politico this morning on the individual mandate. "it will not affect most

americans. the fight has been so loud that people think it will hit everyone." host: let's get to phone calls here. people are waiting to talk to you two about what is up for today and what happened yesterday. ralph, democratic caller in michigan. go ahead. caller: yes, i wanted to talk about the history of the individual mandate. apparently, it was a republican idea. it was used in the romneycare in massachusetts. newt gingrich supported it in 1993. i am mystified about the huge

outcry against what i would call in incremental change in the health care system from the right wing. would romneycare then be un constitutional? would requiring buying a car insurance be unconstitutional? is there a federal law requiring ts?pitals to treat indigenc is there a federal law? guest: i will start. certainly, it is in disputed that this was originally a conservative idea. it came out of the heritage foundation. a came as a response to hillarycare. there was a response that if we're going to have this socialized medicine system, let's have a republican alternative that is market-based people to buy

insurance. the genesis of this idea was conservative. i think it is also true that people like chuck grassley, who used to say this is a great idea, this anti-free-rider idea. hospitals are not allowed to turn you away. you really are subsidizing the uninsured. that was the idea. responseor grassley's is that it is unconstitutional. states are allowed to do a lot of things the federal government is not allowed to do. you cannot quite make the analogy that romneycare is unconstitutional if obamacare is

unconstitutional. in principle, you are right. omneycare is a much beloved in massachusetts. host: here is the front page of "roll call" this morning showing rick santorum. he held a news conference on capitol hill to talk about this legislation, the health-care law, and he also said this is like romneycare, and taking a political stab at his opponent. we covered this news conference. if your interested in watching the whole thing, go to c- span.org. , do you want to add? guest: it is remarkable that something that was viewed as unconstitutional has been -- as constitutional and necessary has

turned into something that is evil. something has happened in the last year's. host: isn't there an argument there from the right to say we do not want the government telling us we have to buy something that we do not want to have to buy? guest: there is certainly some merit of that. the government wants us to do a lot of things. they want us to be eligible for jury duty. we have to register for the draft. things like that. the obama administration has said health care is a huge national problem. in order to attack it, you have to have a number of strategies. one of them is to require a broad revenue base. host: it comes down to the commerce clause and whether or not you can force americans to

buy a commercial product. will we hear the word "broccoli" today? guest: this case is about slippery slopes. at the end of the day, this case has been constructed not just on a bad idea to force people to buy health insurance. as tony says, there's good reason for that. beholthe whole case is based upe idea that if you can for somebody to do x, you can force them to do y. this gets a huge amount of traction. even judges say, if we sign off on the proposition, well, forcing people to eat broccoli -- clearly the government will be able to force you to eat broccoli and kale and vegetables

will take over. this argument has had an enormous amount of popular support. you may not hear the word "broccoli," but you will hear the argument that there is no limit. that is really the heart, i think, of the objection. it's not just about obamacare. it is about what comes next. host: senate minority leader mitch mcconnell and others plan to hold a news conference today at 1:30 and we will have coverage of that. go to c-span.org. here is monty on twitter today. gary is next. republican in detroit. good morning. caller: good morning. i am getting quite confused about this health care.

i have to buy a car insurance. i need automobile insurance. i understand the reason for that, because uninsured accidents could destroy my family. i do not see the difference in health insurance. if you are sick or you get tired -- host: this is a thread we heard all throughout the day yesterday on "washington journal." already, the first two phone calls bring up the issue of auto insurance. tony mauro? guest: as dalia said, states can do things that the federal government cannot do. a number of states require auto insurance. it is not a federal constitutional issue. it's one of the mysteries of the federalist system, why states can do certain things.

it is the result of the constitution. host: it is not a federal mandate that you have to of all insurance. this comes back to the commerce clause. can the congress regulate interstate commerce across state lines? guest: that has also become sort of a catchall provision of the constitution. congress passes a lot of laws and cites the commerce clause as a justification. sometimes, it is a stretch. certainly, the challengers to the law think it is a stretch here. certainly, there's a way to distinguish requiring people to eat broccoli or to buy american cars. the argument is that everybody at some point is going to need health care, and that a decision not to buy health insurance is

an economic commercial decision. you are basically postponing your participation. host: and having other americans pay for it. monica, independent, miami. go ahead. caller: i think the car insurance was a great example. it is not a mandate. the whole thing behind the -- i can understand the republicans fight and some democrats. the mandate. telling somebody they have to do this. if you do not do this, there's a penalty. you will run into all kinds of problems with people proving i was a dirt-poor, so there's no way for me to get this insurance. there will be a whole bunch of confusion, even with the taxes. for them to say they are trying to determine whether its a tax or not, if it's not clear, the

supreme court has the right to step in on this matter. i think it's leading to bigger government. i am an african-american independent. i do agree that this is leading to bigger government. you open the door to this. you are going to open it to other things. host: when will we find out? guest: typically, everyone says we will hear by the last week of june. i find it hard to imagine how they will get this out by the last week of june. that's what everyone is saying. yesterday, if there had been some possibility the court was going to take the anti- injunction act seriously, and the could not even hear the case until 2015, i think this would be an easy one. it looks like this one will not go that way. the court's going to get to the

merits. we will see a big opinion by the end of june. host: today, the individual mandate. tomorrow this issue of -- if the individual mandate is unconstitutional, does that and validate the rest of the law. also, they talk about medicaid expansion. on friday, the nine justices gather in a conference room. just the nine of them. no clerks or anybody else in the room. what do they do, dahlia? guest: this is a great moment. they are so cloister's that the most junior justice has to open the door when someone knocks. just nine of them will talk about the case for the first time. they will discuss what they've just experienced, their initial impressions. the chief justice will take a straw poll. i think they will probably go through that issue by issue on this case. where are you on the medicaid issue? where are you on severability?

then there will be a tentative -- here is what the with feels like -- here is what the wind feels like. i should be very clear. we will never know anything until the decision comes down and we read the last paragraph. host: ben in ohio with an e- mail. host: this brings up our previous caller who talked about the history of the individual mandate. there's a story in "the washington post" this morning. if you have not heard about this, it's something the two

reporters talked about here. that is "the washington post" this morning. ben in turlock, california. caller: i may not be as knowledgeable as you 3. they do this on purpose to keep this complicated. you need to be really, really informed on what's going on with it before you can come up with a conclusion. it is part of a destabilization. even the guy sitting there with you and the lady -- all the people talking about auto insurance. auto insurance is not the doctor who will cut you open. there's a big difference between mandates army having to register -- mandates on me having to register. host: you're arguing this has a better impact on millions of

americans lives and their pocketbooks? caller: yes. it is a little step to a big step. when lenin was pushing his marxist ideas. he took 25 years to demoralize russia before he could destabilize it. it is a long, slow process. this can end up with government telling you what to do. us as americans are not used to it, just like we're not used to seeing military in the streets with guns. we are used to seeing cops. it is common sense to have all insurance but it has nothing to do with being told you have to buy health insurance. host: that brings up the passion on both sides, tony mauro. are the justices oaware of what's going on outside the courtroom yesterday and today? talk about that. guest: it really was remarkable. there were hundreds of

protesters on both sides. the supreme court, there are demonstrations routinely out there. the sideually off to decid place in washington. you don't often see a lot of passion expressed about issues in the supreme court. it reminded me almost of bush versus gore in 2000, where there were huge demonstrations. as to whether the justices pay attention, they are not immune. they read the papers. most of them do. justice thomas says he doesn't. most of them do. they are aware of what is going on. it is interesting. the demonstrations have to occur on the sidewalk. they cannot be on the marble plaza. there's a federal law prohibiting demonstrations on

court property. the court did not want to be viewed as an institution that could be lobbied or swayed by public sentiment. it has been sort of memorialized in the law, the idea that the court is not prone to politics. host: it is interesting that there is a law about that. if u.s. americans if the supreme court is influenced by politics, 80% of respondents said yes. let's go to illinois. john, democratic caller. good morning to you. caller: good morning. two questions. one is more geared to the guests that you have. it is a legal issue. a lot of people are calling in and talking about this not

being a good idea. i hope you can address how are case in the arguments can be. my second issue -- everyone knows there's a lot of hypocrisy involved. exactly how much is involved? in 1992, when clinton first tried to do his health care, the republican response to that -- when he wanted to force employers to cover everybody, their response was the individual mandate. this was about free market. you have to go out and you have to buy your own insurance. the people behind that, some of those are the same republicans who are willing to support arguments at the supreme court who say this is unconstitutional. the guy who called in about

lenin and socialism -- the leaders of his party were a sponsor of the individual mandate. one more thing. i am almost done. not only were those people sponsors, gingrich was in support of this. host: dahlia, if i could have to take the first part of that. the justices are not going to say one way or another about the individual mandate. what are they going to be talking about? guest: they are going to look at the commerce clause. it says to regulate between the states. there's a box. the box says this is within congress' commerce clause powers.

1 wickard v. filburn. the more recent 1990's cases about the gun-free school zones act and the violence against women act. the court struck close down. i think he is quite right. this seems archaic. this is a simple job. the kids could do this. does this fit inside the box or outside the box when it comes to the power of the government? host: let's talk about what the justices might say. we are showing our viewers the cops that have the tickets to get in for those waiting in line. how many seats are there for the public? guest: 400 total.

guest: i think there are about 150 for the public. host: yesterday, there were 150 for the public and 35 three two four minute seats rotating. an overflow room, as well. those who get a ticket this morning will be some of the lucky few. we also heard yesterday about the militia act. tony mauro, can you talk more about that? guest: i think we will hear more about that today. this is the law that george washington signed into law that required people to buy firearms for self protection.

the obama administration has latched onto this case as proof that congress can force you to buy something for the greater good. whether that is a meaningful not, i'm not sure. it is a bit of a stretch. the decisions dahlia was mentioning have sort of superceded that in terms of defining what the commerce clause power is. host: dahlia, i want to talk about which justices to listen to today and of those justices, who might be the fifth or the te either in favor or against. guest: i am so glad you asked that. everyone assumes this is a 4-4 court and justice kennedy in the middle. there's a possibility that going

on. i think there are things that are much more interesting. one is justice scalia, the republican. river he has written extensively about the commerce clause about medical marijuana. the court said no, the government can regulate this within the commerce clause power because it has implications for interstate commerce. justice scalia has written that's ok. the other important person is chief justice john roberts, who has also written quite extensively about the power to regulate in that case for the federal government to regulate dangerous sex offenders. we do not have a history of all the conservatives writing that the commerce clause should be

extreme circumstances. the last couple of decades, since the 1940's, even the conservatives have come to accept a pretty broad reading of the commerce clause. it's not just kennedy we want to watch today. it is still yet and the chief justice -- it is scalia and the chief justice. host: "known for strict interpretation. john roberts took the seat in 2005. the former reagan and bush administration official has linked his role to that of a baseball umpire." tony mauro, go ahead. guest: dahlia was right to mention these other justices who might not be as predictable as you think. i think chief justice roberts is very aware of holes like the one

you mentioned that suggest the public thinks it's an entirely political process. he would factor that into his considerations and say we should not just vote on political lines. we should not be that predictable. i think we might see an interesting combination of justices on both sides. host: here is an e-mail from d.w. in seattle. he said yesterday was a pretty interesting proceeding. host: laura, a republican in tampa, florida. good morning. thank you for waiting. go ahead.

caller: good morning. i work with insurance every day and people needing insurance, needing authorizations. it breaks my heart. two years ago, my premiums doubled. this year, i do not know how much [inaudible] it doesn't help them as much as it should. host: you are in favor of this law? caller: no. host: i miss something there. caller: it has already affected everyone. between the premiums and the insurance companies running away with the cost and out-of-pocket expenses double and triple --

you know, people cannot afford that. they have discount plans that only covers $200 per day for a hospital stay. host: frank, an independent. caller: thank you for the opportunity. as a society, we have to begin thinking about whether or not it is appropriate to make a profit off of getting sick people well. that's what it comes down to. i used to think this was a pretty clear-cut issue, that it would be declared unconstitutional. the longer a study it, the less sure i am. host: frank, let me jump in there. the longer you study it, the less likely -- why? can you pinpoint one issue? caller: i think the congress does have that broad authority. i really think they do. i really do think the commerce

clause is going to allow congress to do this. i did not think so before, but i think so now. maybe it would be great to hear from them about that. i also want to ask them if they don't think this is a beautiful, it textbook, almost shakespearean example that the means to determine the end. isn't it a shame congress did not create a system we could buy into? now we pay almost $11,000 per year for insurance. i would rather buy into medicare. it would be a better program, i would get a better value for my dollar. host: frank, you might be interested in this poll by purple insights. they surveyed previous supreme

court clerks -- people who have already left the court. of those that responded, 65% thought this law will be deemed constitutional by the court, and 35% unconstitutional. dahlia? guest: the american court association took a different poll. i85% said it would be upheld. if i could respond to frank, one of the things he points out that is worth thinking about -- we look at this very historic ally. it is true, absolutely. a huge, landmark law -- likes of which we have not seen in this country. there was the minimum wage law. when congress passed social security, there was a sky is

falling feeling. simply because it is big and dramatic -- it had to be big. it had to be that the leverage in order to fix the problems we all acknowledge. every time that's ever happened in this country's history, the response has been -- this is making me very nervous, there for its unconstitutional. host: the public getting escorted tour of the door. 10:00 a.m. is the start time for today's debate. bob, democratic caller in dallas, tx. caller: good morning. the broccoli comparison. i doubt the broccoli-growing industry would oppose that. i find it interesting that the insurance industry opposes something that requires people to buy their product.

i do not understand it. and what i found interesting was this whole issue of standing, whether the court has the right or the ability to even hear this case. justice kagan brought up a scenario where a poor person who is required by the legislation to have insurance, but is excluded by the same in legislation later on from the penalty. would that person have standing? it kind of cynthia turning into a tailspin -- it kind of sent the attorney into a tailspin. who has been penalized at this point? if someone pays it or does not pay it -- who is injured? host: bob, let me throw that to tony mauro.

guest: that's a very good point and some people have said that's one of the reasons it is an important jurisdictional issue. normally, the court does not rule on things prospectively. they wait for a case or controversy. there has to be some injury. the point that some people make is that no individual has been injured get by the individual mandate for the penalty. there are several plaintiffs who claimed they do not want to buy health insurance or that they are saving up money to buy health insurance. in that sense, they have already been injured. that seems a little thin. also, states have challenged the law, as well. they claim they are already incurring more cost as a result of the new law. host: we're taking your phone calls, your tweets, and your e-

mail. this one is from doug. don, a republican in fort wayne, indiana. good morning. caller: i am opposed to this. we've been retired some time. our former employer supplied us. we are on medicare. supplied us with a supplemental insurance policy to help cover some of the overruns that is not paid. if i am forced to pay this amount of dollar to buy an insurance policy through the government, well, i could see my company that i left and retired from probably dropping my supplemental insurance. he is coy to happen all over the country -- it is going to happen

all over the country. host: don, let me get your response to this story in "the new york times" today. host: what do you think, don? even as the federal government does not, some states are looking at doing this themselves. caller: i have to cross that bridge when i come to it. another thing, too -- is the premium or the amount of insurance that sometimes families have 10 people and

somebody else has four. every individual, man, woman, and child will be placed on this policy. how much will it cost per person? is everyone going to pay the same price. host: are two reporters here are supreme court experts. tomorrow, we will be joined by a health care reporter to answer those types of questions. go ahead. guest: unless i'm really mistaken, if you are on medicare already, you do not have to buy an additional insurance policy. the individual mandate only applies to people who are not already insured. host: massachusetts, lee, an independent. go ahead. caller: i am wondering how the commerce clause applies. health insurance is internal to the state.

you cannot buy health insurance outside of your state. toon't know how this applies a mandate governing interstate commerce. host: dahlia lithwick, have you heard that? guest: i am i'm not sure i understand the question -- i am not sure i understand the question. i think this was another way the law tried to empower states. this law was trying to beat market based and make everybody happy. this was a way to give states power so they did not feel stripped of their authority. it's another way in which it seems to have created more of a backlash than not. guest: i think it is true that states generally are the ones that regulate the insurance industry. certainly, there are national health insurance plans. my plan at work is based in connecticut. i live in virginia.

i'd think it would be hard to claim it's not an interstate commerce type of transaction. host: dave on twitter. "if obamacare is constitutional, what happened to the power of limited government?" anne, a democrat in fresno, california. good morning. caller: i have a few things to say. first, with the penalty -- people are confused thinking it is a tax only because its processed through the irs. it has nothing to do with your taxes. this is just a penalty where they collect the money, just like they do for bac child- supportk payments and things like that -- for back child support payments and things like that. host: dahlia, is that something

that robert long argued yesterday? guest: had the obama administration called this a tax from the get go, we would not be having a lot of the constitutional fights we're having now. it gets a lot easier. they did not call it a tax because nobody likes any lofaw that says, "we are going to tax you." her question is a good one, which is, how is the court going to think about this? that was the predicate for yesterday's argument. it will be a big part of today's argument. it really does go back to the walks like a duck question. host: tony mauro, what about the aspects of whether or not this raisingenue-r

penalty. was that its intention? guest: i do not think that was its intention. this was raised yesterday. the congressional budget office has estimated that this penalty, once it is up and running, will generate as much as $5 billion per year, which is not insignificant. it is intended as a penalty cannot intended to raise revenue. host: if this sounds more interesting than you thought it would yesterday, you can go to our website, c-span.org, and we have the oral arguments right there from yesterday's proceedings. you can listen in to what the justices and the lawyers responding had to say. .averick on foottwitter baltimore, frank, a republican. go ahead. caller: good morning. thank you for taking my call.

i wanted to ask a question. justice scalia -- there was talk about him being objective and ruled against the mayor won a woman in the case in california or something like that -- the marijuana woman. host: it was gonzales versus raich in 2005. caller: are they so political that we can expect them to always vote for president obama's position? host: let's have tony mauro take that one. guest: that's a good question. that's why some people thought justice kagan should recuse herself from this case because

she was solicitor general when this lot was enacted and the strategy was being developed -- this law was enacted and the strategy was being developed. some of the justices are more predictable on this case than some of the others that dahlia mentioned. whether that means they are all in lockstep or following the orders of the obama administration, i do not think so. i do think it is -- i think those four liberal justices, , ginsberg, kagan, and sotomayor are pretty certain to vote in favor of the law. guest: i think it's fair to say in this particular case, the only justices of the nine who is really on the record saying that he agrees with the kinds of

arguments that are being made here, the kinds of commerce clause arguments that would return us to the 1940's and the greek new deal court is clarence thomas -- the pre-new deal court is clarence thomas. two years ago, i would have said the only justice who would have supported striking down a mandate on this very novel idea that we want to set the clock back and really unwind the view of the commerce clause, the only person i would have said it would support that would beat clarence thomas. it is fair to say the other eight are theoretically in play. host: clarence thomas, nominated by nominatedh.w. bush, took the seat in 1991. detroit, don, democratic caller.

go ahead. caller: looking at this, i wonder if i've awakened to some orwellian government. it's hard to believe the government will force me to bite insurance or else. insurance companies, who in my opinion are kind of criminal, because they deny health care at every opportunity and they raise premiums every chance they get. i will be forced to do business with companies whose practices i disagree with in principle. this is really amazing to me. there's going to be trouble. i can promise you that. host: you are calling on the line for republicdemocrats. caller: i am a democrat. i voted for obama. four years ago, i is supported hillary, which raise a lot of eyebrows. i still supported her. i'm not one to vote for obama. i'm going to sit out or vote for

a republican in spite of what's going on. host: will this issue bringing to the polls to vote for someone other than president obama? caller: what will bring me to the polls? host: this health care law, are you passionate enough against it that you will vote for a republican in 2012? caller: i will. i think i got hoodwinked when i voted for obama. he has been a stealth republican as far as i can tell. there's not much difference between him and bush. this is something republicans would never do. i do not support republicans. i'm against bush and all that nonsense with though worse. this is something republicans would never try to push on. host: don, a couple callers have brought up that republicans came up with the idea of the individual mandate. if you're interested in that, "the washington post" has a story today.

if you are interested in finding out the history of this a little bit, you can read that "the washington post" story. let's move on to bill, an independent in kentucky. caller: i want to talk about what you will really be giving up. people do not realize this. what you will absolutely give up its end of life care. let me tell you a story. my mother contracted colon cancer several years ago. during the time she was at the hospital undergoing surgery, she also contracted a lethal infection. ok. they put her into hospice care, my sister did. i was out of the city at the time. i came back from the york. i went to the hospice people and i told them. they said she had six months to live. i asked her how she felt about staying in hospice. she did not want to stay there. she wanted to come out. she had good insurance, in addition to medicare.

we were able to take her out of there, much to the chagrin of the hospice doctors, who did not want us to take her out of there. i got two physicians, one who was an expert on cancer. we set up a hospital room in the house. she lived for two years after that. she never ate anything. host: bill, i hate to interrupt you. we are running out of time. this end of life conversation, will that be part of the debate today? guest: i do not know. i do not think so. i have not heard that angle brought up legally. host: dahlia, tell us who is arguing for and against. ,uest: we've got don verrilli the solicitor general, who yesterday ably defended the obama view. we have paul clement, who's sort

of a wunderkind of oral advocacy. and michael carvin. those are three of the most breathtaking oral advocates you will see. i would suggest listening in, if only to see the sort of harlem globetrotters of caller: thanks for c-span. one thing i have seen an yesterday in the local paper mentioning that the individual mandate is primarily for risk pooling and that will force healthy individuals who don't see the need for insurance to buy it rather than being the rationale being to because everyone will eventually need it. it is to get people who don't need it to get their money into the system. the other point they made was that the decision not to buy a

product can be considered activity. guest: the point has been made by the government that everyone, even healthy people, are one minute away from needing healthcare whether an accident or sudden illness. so, that is why they think the individual mandate is justified because you are requiring people to get insurance before they need it but ultimately everybody will need it. guest: listening to the caller it is interesting people are complaining about pwhrapbing premiums and being turned away for preexisting conditions and those are the problems this attempted to some. the only way to control is through an individual mandate. everyone is in the pool, insurers don't turn away people with preexisting conditions. it is fascinating we want the

changes and loathe the only regime that seems to be able to fix it. host: we have run out of time with these two guests but this conversation continues here on the "washington journal" this morning. up next a roundtable discussion delving deeper into this individual mandate issue. bit by the way the oral argument will be released about 1:00 and they will be reaired on c-span 3, spaurg and you can interact with what you are hearing, tell us whether you are approving or disapproving of what the justices and lawyers are saying in real-time. earlier this morning our cameras on capitol hill before the court and we talked with three students waiting am line to hear

the proceedings. >> we are outside the supreme court talking to people who stayed out all night. >> david jackman i'm here to be part of this event. >> you are an aspiring law student? >> yes. >> what do you think of the constitutionality. >> i think the only limit on federal power will be those that are in the bill of rights. >> whether do you think the implications of that are? >> what is the point of having a constitution if it do not limit the powers of the federal government. it is scary that 535 politicians will be in charge of making you purchase stuff. >> if you are against the healthcare law on principle. >> constitutionality. i don't know enough about health policy to say this is a good or bad law but on constitutional grounds i'm opposed to the individual machine date. >> have you been inside the

supreme considerate? >> yes, betty duke versus wal-mart stores. this is my second time. >> why do you want to go to law school? >> i'm interested in constitutional and patent law and this will be something i will be proud to say i was there and in the courtroom. >> what is your name? >> lindsay wallace. i'm a law student at georgetown law cancel -- law school. >> what does it mean to be here this morning? >> it is amazing. we have beenen courage by professors to go to the supreme court and i'm excited to be in the history in the making. >> have you been talking about this in law school? >> yes. we had one exam assessing the constitutionality of the individual man indict of the health care bill. i think it will be upheld. there are broad limits to allow

regulating this. i think there are valid points but ultimately the supreme court will not over turn something that allows the federal government to regulate. >> what do you think of the healthcare law of itself? >> i'm pro the health care law in terms of policy and allowing millions of uninsured americans to get healthcare. i know a lot of children are not covered, poor families are not covered and i think this is good policy generally. >> you have been out here all night? >> yes, since 1:00 p.m. yesterday. >> what is it like? it got pretty cold. >> it was. i went to duke so i did this four years for basketball games and this is a bigger deal than a basketball game. >> you are a high school student. i go it thomas jefferson in alexandria.

>> yes. why are you here? >> this is one of the most landmark cases in the next few years and if aware part of the history we are take advantage of what we have in d.c. we have all grown up here and why not share a moment in history? do you have a strong feeling about the health care law? >> we read the briefs and we have been talking about precedents and how it will play a role and how it could help both sides of the argument. we believe that the commerce clause could be tethered to the case and we feel it will be uphold. we all believe that. >> so you spent the night reading the brief for the case? >> yes. one of our friends read it out loud and we talked about it.

it was fun. >> is that a typical monday night for you? >> no. we are all interested in government and politics. >> thanks for talking with us. host: day two of supreme court hearings on president obama's healthcare law. you see protesters are there outside of the court on capitol hill and we saw a lot more yesterday of those that are in support of the healthcare law. today here is a co-founder of the tea party patriots saying hundreds of people are planning to be here today. that is our big day. individual mandate is on the docket for the nine justices. they will be pepper being the

lawyers with questions about that at 10:00 a.m. eastern when they begin oral arguments. we will be airing the oral arguments around 1:00 p.m. when the court releases them on es c-span 3, c-span radio and c-span.org. we want to go deeper. joining us from yale is a professor there in new haven and steven presser in chicago heal history professor at northwestern law. is the individual mandate, what is it and is it constitutional? guest: it is basically a requirement that a broad range of americans get a health insurance policy this meets various standards and if they don't do that, then they pay to the government. there's going to be a question

what we call that payment, whether a fee, penalty or a tax. it is paid to the internal revenue service as part of your april 15 duty on your i.r.s. if you don't get an insurance policy that meets minimum standards you have to pay and the basic idea is if you don't have the insurance policy, if you get sick and end up in the emergency room the rest of us have to pay for you and that is not right. host: is it constitutional? guest: in my view, yes, easily so for at least two reasons. it is a revenue measures, a tax measures and the government has broad power there. second, there is a genuine interstate problem that this law addresses. i have objections to the law and policy grounds but on constitutional grounds it pretty clearly addresses interstate problems. i will identify two. i teach at a national school.

a lot of my students are from out of state. at any given moment maybe 5% of americans or millions of americans are out of state. i teach often in massachusetts, often in new york city. i'm a connecticut person. if i fall sick in massachusetts or new york or anyplace else i will go to a local emergency room and the local taxpayer, if i don't have insurance will pay. i'm out of state and get sick and the local e.r. folks pay for me and that is an interstate issue. another problem, if i get a better job, if steve presser's school offers me a job and it is better, if i have a preexisting condition and they don't want to cover that i can't move to take the job even though it is better paying, i can contribute more, i'm locked into

the current position if we prohibit discrimination against preexisting conditions. that prevents people from getting the best job if it is out of state. one key purpose of the constitution is create interstate mobility of goods and servic services. there are other problems this solves. i think the federal government has a role in dealing with things that really genuinely spill over across state lines. they have to genuinely spill over. host: steven, presser can i get your take on the individual mandate and its constitutionality? guest: first of all i should note we did make an offer to him a while back but for inexplicable reasons he chose to go to yale. be that as it may, let's handle the two things a, that he mentioned. if it is a tax he is right.

the taxing power of the congress would probably cover it. but for political and other reasons it was quit e clear in the minds of proponents that it was not a tax. so i set that aside and i suspect the supreme court will do the same thing. the more interesting question is one he raises. that is that health law is a national problem. i guess it is. but traditionally we have handled that problem at the state level. the real difficulty with individual mandate and with the provision that requires virtually all adult americans to buy a product is if congress can do this there are very little, very few things congress can't do. if that is correct, our basic scheme of a federal government with limited and enumerated powers specified in the 10th amendment is out the window. no one that i have been able to

read about has come up with a limiting principle if congress can do this. that is the problem and where you will see the discussion focus today. are there still limits to congress agenci congress's powers and is this takes the things that powers too far? if congress can do this there is no product congress can't compel you to buy from green cards to green vegetables. if that is the case, it means that the idea of limited government and protection of liberty is out the window. host: when you are listening to the oral arguments which justices do you fear will vote against this healthcare law and say it is unconstitutional? guest: i'm not very optimistic that my dear friend -- and i hold him in the highest personal

regard -- clarence thomas, i'm not particularly optimistic that he will be with me on it constitutional question. and he comes to that position in a principled way. he dissented in an important case, gonzalez versus raich. we may talk about it. that upheld federal power and on the same principles that apply the obama care legislation should be upheld but he was a dissenter. he was the only disisn'ter who is on the court. two others are no longer on the court rehnquist and o'connor. i think he is going to be the most difficult vote. i think it is imaginable that the other eight could vote to uphold it.

i say that is the most likely scenario. i think it is almost unimaginab unimaginable, if you are asking me to make a prediction -- this is not about what i want but as a professional what i think would happen -- i think it is almost unimaginable that there would be ever more than five votes to invalidate. i think there are four pretty likely votes to uphold the law. those would be justices kagan and brayer and ginsberg and sotomayor. so i think the opponents have to fill an inside straight, work from thomas and lose their most likely vote and they have to work out from there and get the other four. that would be justices kennedy, alito, scalia and roberts. host: professor presser, who do you fear could be voting that this individual mandate is

constitutional? guest: i think i agree pretty much with akil's analysis. if we look at each of the justices that he didn't mention we can talk about some of the possibilities. the most interesting one is scalia who is with the majority in the raich case which was a broad interpretation of interstate commerce but that involved the prohibition and scalia has always been pretty much committed to the government powers with respect to criminal law enforcement. this is a different issue. roberts is one who is very difficult to predict but he has taken a position there ought to be some restrictions on commercecommerc congress's commerce power. kennedy said last year in the bond case that federalism

protects individual liberties and i think the opponents of the act are very much counting on his putting his money where his mouth is. that leaves alito and he has not, as far as i know, taken a position on interstate commerce. but i think he was deeply skeptical of the president's censoring the supreme court in the state of the union address a while back and my guess is alito will side with thomas and i hope roberts and kennedy and cancsca in determining this goes too far. but it is anybody's guess and i think if it throws out the legislation a 5-4 vote. it probably is correct if it is upheld it will be more than 5-4. host: american hero tweets are

there any limits to what the government can mandate? nanny a republican in waterloo, indiana, you are up first on whether the individual mandate is constitutional. caller: it is not constitutional and just the question of the thought is what can the government mandate because of he progressivism in this country the last 70 to 80 years with judges that can say yes, it is electrical tells us the -- legal tell us the situation the is in. i hope they mandate that everybody gets a dental plan because i like people with nice white shiny teeth. that is the insanity of it. guest: since the caller mentioned progressivism and said 70 to 80 years, i would say yes, progressivism and let's go back 100 years.

100 years ago we the people of the united states, people who call themselves progressives, amended the constitution to put in the income tax amendment. i know it is not popular in march and april but it is there, 16th amendment. it given to you by people who called themselves proudly progressive and it is about a progressive insurance tax. a tax that was designed to tax the wealthy, especially the 1%. let me read to you what the political party platform at the time said. this is from a book i wrote way before the current debate. the buffet rule is, it is in the 1908 democratic party platform although the republican party supported the amendment. teddy roosevelt did. here is the 1908 democratic party platform when urges the

of a constitutional amendment pac-10 authorizing congress to levy a tax to the end that wealth may bear its proportionate share of the burdens of the federal government. by the way, according to a treasury department estimate at that time the income tax at the time applied to less than 1% of the population. so, more things change the more they stay the same. why is this relevant? if the government can tax me and i think it can, it may not lying that so i can vote them out but if it can take the money that it gets from the tax revenue and buy something, which it can, if it can attack the things it bought and give it to me, which it can, it may be that the government, as long as it calls it a tax, has broad power to say cut the middle man out. we have the power to tax you so we have the power to force you

to buy stuff. as long as we call it a tax and as long as it is a revenue measure of sorts. there are two different powers in play. there is the tax power and question is, is it a revenue measure. and if you did like it vote them out of office. the second issue, does it address an interstate problem, not everything does and later on we can talk about at least two cases where the supreme considerate recently decided that there was not an interstate problem and i agreed with the supreme court in those kiss. they are lopez and morris and we can talk about them. i believe there are certain things the federal government can't do. they cannot do things that don't raise taxes and don't regulate interstate problems and don't solve something else. host: we will get into that but first insurance companies will be forced out of existence in time because single pay are is

ultimate goal. patricia from long beach, new jersey, is up next. caller: i hope you will give me a moment because i'm a little with all of these brilliant people. host: don't be nervous. go ahead. do believe that this is a capitalist country, it is not socialism. when you go to a country that are government dependent, they have to pay higher gasoline tax and they have to pay 70% of their salary back to the country to support the socialism in that country. question the increase of the gasoline tax of late, they keep going up. is it part of the federal government increasing that tax to pay even before it goes into,

you know, reality, pay for the upcoming national health care insurance, which it is. this is the beginning. if this passes, this is the beginning of this country from a capitalist countr country, life, liberty and pursuit of happiness, to a socialist system. host: professor presser, i want to get you involved in the conversation. your caller has a very powerful point. that is why this issue is so and why the supreme court is devoting more time to the arguments over this act than i think we have seen for probably 30 or 40 years. this is -- your caller is correct. a redistributionist measure. so was the 16th amendment that was referred to before. the idea of a progressive tax is

not one that necessarily everybody in this country buys. a flat tax or consumption tax might be fairer. but the real point is, the call are stress this is and is absolutely right, that the folks who pass the act believe in central planning by the federal government. that is the no, sir that is dominant in western europe and it is the notion that is bankrupting a lot of those economies. this country has had a tradition of decentralized planning. that is what federalism is all about. this country has had a tradition of individual states as laboratories to work out the best social solutions. it seems to me the healthcare insurance area is one of those that experimentation on the state level is helpful w. the american people themselves in the last election, i think, in 2010, decisively rejected this patient protection and affordable care act and the behind it. so, what is at stake here, your caller is right, is nothing less

than individual liberty, the system of federalism and our traditions. i agree with the caller 100%. host: from twitter progress simple caused federal income tax. obama care raises taxes and consumes most of our g.d.p. richard an independent from laurel, maryland. caller: good morning. i have listened as the debate went on to pass this law was kind of not that concerned about it but the more dysfunctional the debate became i was for abandoning the whole thing at that time. however, if you will recall, the election of george w. bush was decided by the supreme court

sort of number will tpaoeug the elect united states -- nullifying the electorate. i don't think that was a coincidence. secondly, i also don't think it was a coincidence that the supreme court made a ruling on the -- whether or not corporations should be called people. host: so, politics plays -- caller: what i'm trying to say is that the 10 deny si -- tendency for the conservative movement to pull down barack obama any way that it can, i feel that the supreme considerate will -- supreme court will put down this one also. host: tracy a republican from

wyoming. caller: good morning. my concern lies with the separation of powers of the federal government, the live, executive and judicial branches and especially on the heels of the anti-injunction architects yesterday. if one of your guests could address my concern, because the executive branch acted as a de facto court by authorizing exemptions particular to the unions after legislation was passed and before any tax or penalty was assessed, can you address that? host: sure. guest: there are at least three different issues. great question. one is the question of individual liberty. the second is a question of federal i

steve presser has teed up for us about what should the federal government be doing versus states and now we are talking about two aspects of separation of pors. these are three of the principles of our constitution. two aspects of separation of powers. first is, are courts doing too much? are they too activist. the independent caller suggested maybe that there should be a certain judicial restraint on this view if you don't like obama kecare, great, vote again the people that gave it to you. steve presser said that is what happened in 2010, we will have another election in november and do it again. one argument of separation of pors is the main check when government overtaxes us or overregulates us are political. we the people can say we don't like it and vote them out. and judges shouldn't lightly

intervene where the political process can take care of things. that argues for a certain judicial modesty and restraight. let the voters decide. there is a second issue that your caller from, i think, wyoming mentioned, which is the role of the executive branch. has the executive branch somehow overstepped in giving exemptions. i don't think that is really being discussed in today's litigation or yesterday's oral argument or tomorrow's for that matter. the big theoretical point here is many laws delegate certain powers to the executive branch to make modifications, waivers, exemptions. so the exemptions the white

house may have made were provided. there are limits on congress's ability to give the executive branch carte blanche and in two 1935 cases they said they went too far to rewrite the laws. it is the nondelegation doctrine. but that is not at issue right now before the court. host: let's go to the current corporate and have you respond. kennedy isn't going to allow himself to go down in history as the justice that ended federalism. professor presser? guest: i think that might be right. we come back to the 2011 case in which he articulated a defense of giving the federal government limited powers to preserve the rights of the individual citize citizens. kennedy, federalism is a protection to liberty and i think that your caller is probably correct. that is why kennedy, in the end, will reject this piece

of legislation. we still don't know what will happen with scalia and roberts we don't know how it will come out. but i think that is the way kennedy will go. host: let me show our viewers and get you to respond to chief justice roberts on the commerce clause on his confirm atiation hearing in 2005. >> of course, there is decision after decision going back to gibbons against ogden one of chief justice marshall's early opinions about the scope of congress's power and recognition under the constitutional scheme that it is a broad grant and this body has the authority to determine when issues effecting interstate commerce merit legislative response at the federal level. host: professor aphamar. guest: i agree with what he said.

he invokes john marshall. let me say the greatest marshall. mccullough versus maryland and they have heard of more bury versus madison. but he upheld the federal pour to establish a national bank and sweeping federal power and there is no clause in the constitution that expressly says you can create a bank and marshall said that didn't matter, the federal government had broad powers. and he upheld the constitutionality of a bank on a theory that it wasn't explicitly on the text of the legislation, he said it is a national security measure and this doesn't use tax, it says penalty but it could be upheld as a tax on the mccullough presently. they say this creates a mandate and marshall said there is

nothing particularly problematic about a corporation like people today say a mandate is another kind of law. there are all sorts of laws. so, i would agree with john roberts and say he now sits in the chair that john marshall did as chief justice and i hope he rereads not just gibbons but mccullough versus maryland as he ponders his decision. host: stephen presser. guest: it does give the federal government broad powers. but the question hear remains, are there limits to those powers? and to go back to the two cases that akhil mentioned, lopez in 1995 and morrison in 2000. you can read them to say two things. one, there has to be some limit on congressional power or the 10th amendment is deprived of meeting. second the police power, the

general law making power and power to regulate in the interest of health and safety and the normal things that law does must remain with the states. we can't read mccullough versus maryland to do away with the 10th amendment. i think chief justice roberts probably believes in federalism as well and we will find out which principle is more important, broad federal power or protection of the individual liberties of the states and the people. it is very exiting to find out which way it ends up. host: so, today during the oral arguments that begin at 10:00 a.m. give us some key words that could come out of justice rober roberts' mouth that may indicate one way or the other that he is leaning. guest: he is probably going to ask and i manual the others will ask, give us a limiting

principle. tell us what still preserves the and we will find out if whatever limiting principles are advanced if they can be. whether they are satisfactory to judge roberts and judge alito and judge scalia or not. i think that we also have to watch the way the justices react to each other. i think that you will see a very live hr lively debate implied by the questions that the justices ask. so i would watch them react to each other. i would look for discussions of federalism. i would look for discussions of the lopez case, of the morrison case, of the raich case. and the case that involved the farmer growing wheat for his own household. those four cases and those simple concepts, federalism, 10th amendment liberty are the things to watch for.

host: the court releases the audio from the oral arguments around 1:00 p.m. and like yesterday we will air the oral arguments on c-span 3, c-span.org and c-span radio so you can listen for those key words that you just heard from professor presser. a twitter the mandate is necessary to drive down cost. if there is no mandate the insured are still paying for the uninsured. caller from springfield, missouri. caller: yes. it blows my maintained that those -- my mind that those in that own stock in the health care industry can mandate anything that would make their stock skyrocket. and-or judges, if they own stock why don't they excuse themselves. host: lawrence, a republican

caller. what are your thoughts this morning? caller: i have a general question. i'm confused. concerning the individual and they will argue if it will be a tax or not. host: they did that yesterday. caller: ok. if it is determined that it is a tax, do not that mean they need more than a simple majority to pass it in congress? and number two, i have heard so many people argue concerning that the states can force people to buy insurance, consider insurance. and i don't understand why any electric legal mind has not come up with the point they don't enforce you to insure yourself. you are just required to insure somebody else. if you have a car and you don't have a payment on a car you are only required to have insurance for liability in case you damage somebody else's property or you

damage the state as property because you are driving on public streets. i don't understand why that government is being used. host: professor amar. guest: the constitution doesn't require a special super majority on tax law. simple majority is sufficient. in congress this was passed pursuant to internal legislative rules that only do apply to revenue measures. whether they call it a tax they processed it as a revenue measure. the congressional budget office estimates it will save four to five billion dollars a year, $100 billion overall. if it is a tax that has to raise revenue and this one does and here is another, if it is a tax and you don't like it vote them out. we can only be taxed with representation.

the constitution says taxation with representation. if you don't like it vote against it. that is on the tax measure. as for insurance and insuring against hitting somebody else's car the analogy is if you don't ave your own insurance for healthcare and you get hit by a car and you go to the e.r. and you don't have insurance, someone else is going to have it pay for you. that the is what your twitter person identifies. so, you are imposing costs on other people. host: let's go to wilmington, north carolina. democratic caller. caller: i have been on the losing end of the health care battle and one of the 40 million or 50 million that don't have it and because of a car wreck that happened 20 years ago today, i was a passenger in which cost

over a half million and i spent the next two years learning how to walk and talk and learn and everything and once i turned 18 i cannot get insurance. i'm 35 now. i can never get insurance because of that wreck. and the cost of that wreck. host: how does that relate to this argument today? caller: well, i'm just saying that -- really, nation s ths th have healthcare is better. the more healthy people we have the more they are able it work and the more taxes and revenue the country will get. guest: your caller has a tremendously valid point and we do have a problem in america with people who don't have health insurance. but the question here really is, do you want a one size fits all

dictate from the central government or do you want to let the states work out the best way to deal with this admittedly very pressing problem. and, of course, healthier americans are better for america. it is just that a central government that has one of your callers pointed out that can pick and choose among beneficiaries and award the political allies and punish the political enemies may not be the right way to deal with the problem. a constitution could nntemplas system in which state and local governments are the primary law givers and they can experiment to reach just and correct solution that is will benefit of us. that is what is at stake. host: oak park, illinois. guest: i want to just say you asked what did the caller have to do with the mandate. he said we need in effect to

prohibit the discrimination on the basis of preexisting medical conditions. that is one part of obama care. you can't have that part as a practical matter unless you also require everyone to join the insurance pool because otherwise this will be adverse selection. it will unright-field line. so you have to -- it will unravel. you have to prevent insurance companies from discriminating against those with preexisting medical conditions but you have to get everyone in the pal. those are two connected policy ideas and that is at the heart of obama care. host: richard, independent, oak park, illinois. caller: thanks for taking my call. it is a pleasure and honor to talk to these people. i want to ask -- i don't hear a lot of law professors talking about what i think is the most fundamental foundational nature of our law and that is the constitution seems to have been created in order to try to help

people and obviously there is always going to be a conflict when a law has to manage a situation where there are conflicts between defend people. for example, with the income tax would seem as if the government decided it was going to try to help the many by hurting the most advantaged. and i wonder if the context of this argument falls into the category of in an attempt to try to help the many the advantaged are feeling squeezed, they don't really want to be forced to help the many and we're really by virtue of not having gone it the single payer, which is what they should have done, it is now creating a circumstances where we're investigating or should be investigating very fundamentally what is the purpose of our law. are we going to try to help people or bicker and argue and

go down to divided we fall? host: will that be part of the argument we the court takes it up? . in a way that is the argument. the question is, if you want to help people what is the best government to do it? is it the government closest to the people, which is the state and local governments, or a federal government that is maybe revi removed from the issues that effect the people. that is what federalism is that we have dual solve rpities that -- sovereignties. that the federal government does what it is best at, waging war, fortune relations and state governments take care of the rest. that is up for grabs. there is a more fundamental issue at stake and the caller pen points it. -- pinpoints it. that is redistribution. this healthcare law is a redistributionist measure. that may be whether you have to

do when you are attempting to cover those who don't have insurance. but it is a nice question whether the state and local governments can arrive at a fairer solution. i believe they can. than can the federal government. so, we will see some of that discussion. what we're addressing is fundamental questions about the nature of our republic and whether we should allow dictates from a central body or let the people themselves decide the questions. host: stephen presser, who is arguing against this law in the court today and tomorrow? guest: well, there are two people who are going to mount arguments. one of them are the representatives of various states. 26 different states have joined in the legislation to set aside this act. another body is a national association of small businesses

who believe that their health care costs are going to be driven through the roof. i think earlier on c-span you discussed exactly who the advocates are going to be. a former solicitor general will be one of them indicating that the act goes too far. there is another counsel but i don't remember what his name is. basically, what you are looking at today are the arguments of the states who oppose the measure, those local governments, those closest to the people that i mentioned earlier, and business persons who will be directly affected. host: earlier we talked with a plaintiff for the national federation of independent business -- guest: it is that group. host: we will listen to that and then professor amar's take. >> we are outside the supreme court with one of the plaintiffs. what is your name and why are

you here? >> i'm here on behalf of the small business owners represented by the nfib to try to find this healthcare mandate unconstitutional. >> you are a business owner in west virginia? >> correct. >> why don't you think this is unconstitutional? >> they are mandating people in binding contracts with other private companies. it is not the role of the federal government. >> so you don't want to have to health insurance >> i don't. i have always managed to take care of my own affairs through my whole life. i have a savings and emergency fund to take care of situations when i need a doctor, i pay for him myself and i think that is the way i should choose. >> how has the health insurance law changed for you and why do you feel so strongly that you

have gone to this length to be part of the case? to understand that i have a retail flooring store in a town that the population is 383 people. i'm a sole proprietorship. i don't have any employees. the business and environment isn't big enough to take care of that. if i start having to put out health insurance, which is a product that i don't need incidentally. i take care of my own bills. the store couldn't sustain. there's in the new revenue. >> do you worry about a catastrophic situation if a health emergency comes up that could cost tens of thousands of dollars? >> i have provisions in place to take care of that. if it overspills my emergency fund i can rely on my i.r.a. to do that. i feel confident that i can handle just about anything. >> have you ever been to the supreme court before? >> no. >> what is it like to be here

as a citizen? >> it is exiting. it is -- i'm a history buff and i read about how the way things are and this is astonishing it and i'm part of it. >> thanks for talking with us. host: professor amar, i want your reaction to the argument made by one of the plaintiffs from the national federation of independent businesses. guest: he didn't really, to my maintained, explain why -- mind, to explain why this is not an interstate problem and if it is congress can do this. you may not like it so vote against it. if he were to ever come on a trip to conditi connecticut andt by a truck and need emergency care and suppose his funds run

out. suppose his business turns down. he may have to file for bankruptcy. he can't guarantee -- that is what insurance is about, goghing that somebody will pay. if he doesn't have insurance he can't question he will have the funds. if he is of the pockets of the good people, the connecticut we will take care of him. that will come out connecticut. unless you tell me that people actually don't travel across and they do, at any given second in america millions of americans are not in their home state. most of my students are. on three days a week i'm either in massachusetts or in new york. i'm a connecticut person. it really is an interstate and people who don't have insurance are in effect free riding on the rest of us and taking risks and putting us

at financial rick -- risk of having to bail tell out in catastrophic situations. did mr. presser, whether you hear? guest: i don't agree necessarily with what akhil says about free riders. if it is in illinois and you are cared for in an believe r emergency room you will get bill and if you can pay it you will pay it. that is what your caller would do. so i don't think what he said about free riders is necessarily applicable. it is true that there are interstate aspects to healthcare. but that is true for every basic need. housing, air, food. unless you want the federal government to dictate rules in all of those areas that are binding on all americans you have to have some pause and be a little cautious about what is happening here with this particular bill. host: darrell frazier weighs in

on the twitter page. republicans don't want this totally dead. they need enough alive to consolidate majorities in congress. linda, a republic in lynchburg, virginia. caller: i have several comments to make. first of all, you want us to buy insurance from companies that deny us every single day the things that we need. i call insurance companies and get denials for medications that my doctors say i need and they say it is not on the list, you can't have that. pick something else. if i need it, i need it. we get denied. you can't have that test because we don't think you need it. my doctor thinks i need it. but we don't want you to have it so we will do business with a company doesn't want us to have things to start with. if the government is going it tell us that we have to have this, if they are starting here

will we be a communist country because the government is involved telling us what we are going to have and not have? then you have got congress that holds stock in these companies so they are fighting to line their own pockets. then if we can't afford the insurance, if we could afford the insurance we would have it. host: that is a republican from lynchburg. beverly a democratic in oregon. beverly, you are on the air. caller: hi. i think that i have two comments to make. i think that it is more political than anything. medicare part b is unfunded and i don't see anybody out ranting and raving over that.

i was watching last night it was shown to go it congress and senators and whatnot in 1993 all republicans who were very much for the individual mandates. so i think it is strictly political and part of an agenda. just my own private opinion. and have a good day. host: that was beverly's opinion. professor presser, let me have you respond to matt smith. int interstate seems to refer to a business transaction between parties of two states. why isn't this the case? guest: that was the original understanding of interstate commerce. it was expanded radically in the course of the new deal and in several other cases that followed the new deal. but that was the paradigm and

that is what it was put in to deal with. the framers simply department contemplate an all powerful federal government. that is a point to be tan account of -- taken account of when you want to ask does it measure go too far. host: here is last wednesday's "u.s.a. today" headline health care defenders look to george washington. the act may have laid precedence for insurance mandate. can you explain that? guest: yes. it is said often, i heard it on the radio coming in this morning, that the government has never mandated the purchase of a private product. that is not true. the militia act of 1792 that his e washington put signature on required individuals to have muskets and pouches an ammunition. it is a very elaborate individual machine date.

s so, it is said that was the militia clause and this is the commerce clause. but it is the sam constitution that talks -- same constitution that talks about a well regulated militia and we are talking about regulation of inter sta commerce.e so, from george washington's day on it has been understood that sometimes it might be appropriate for the government to tell you to get something yourself rather than the government getting it for you. host: mr. presser, take the other side. guest: akhil is a wonderful and brilliant law professor and one i admire most and he made the argument on the other side quite well. if you look at article one, section eight you find four different clauses that deal with the militia. the key one is this one that expressly says congress has the power to provide for organizing,

arming and disciplining the medic militia. but the commerce clause is a more modest measure that just says congress has the power to regulate commerce with fortune nations and among the several staeu states and indian traoeufrbs. and everybody understood the militia was something in which the states have primary responsibility and congress itself indicates that the states have the responsibility of officers and organizing the militia. this militia act late 18th century measure is not at all, i think, precedence for allowing the federal government to take over one-sixth of the economy. it is an ingenious argument but i don't think it carries the day. host: don is next independent caller from minnesota. caller: hello. caller: organgood morning.

caller: i would like to offer an amendment to that law. let's have the republicans issue red cards to those who wish to opt out of the healthcare law and carry this card so that whenever they get in a car accident or get sick and go to the hospital it will say i do not have insurance so push me out in the hall and let me die. thank you very much. host: ok. james howard on twitter has this question for the professors. has the supreme court ever rejected the remedy congress has chosen to address economic dislocation in interstate commerce? guest: i think the answer really is no. i don't think the supreme court, at least in the last 60 years, measure d out a phaeupbmajor of social and economic policy like this. there are limits.

the court, in two important cases that steve and i both mentioned said congress went too far. but they were pretty small laws at the fringes. was the gun free school zone act case and another dealt with violence against women. neither of those laws were addressing a problem that was a central economic problem that spilled over across state lines. if the supreme court by a 5-4 vote were to strike down this major piece of signature legislation brought to you by the democratic party and if you don't like it as i said, vote against them in november. but i think it would be unprecedented. you would have to go back to something like the dred scott case where the supreme considerate struck down in effect the political platform of one of the two parties and in that case republican party. their platform was read our

himself, no slavery in the territories and the spraopl court said that is unconstitutional. the democrats say we believe in healthcare and if the supreme court struck it down that would be big deal. guest: i don't thinkcaller: vert think dread scott is the right case to look at. 1935, the schechter poultry case, the court rejected the first deal in the federal economy through a federal mandate. this is very much an analogy to that. but akhil is quite correct. not since 1935 has the board thrown out a major piece of federal legislation of this magnitude. that is what makes this case so very important. host: we went back to the archives to show what chief justice roberts said on the

commerce clause. let's go back to 1993 when justice ruth bader ginsburg was at her confirmation hearing talking about the commerce clause. >> major source of that authority is article 1, section 8, where the power is lodged in congress, surely not in the courts. the one thing that is clear is that the courts are obliged to faithfully follow the treaties and laws in this area as set by congress. the courts do not have any law creation role to play. this is not a common law area. this is an area for congress to control. it is a very difficult area, and the courts will have construction questions presented to them. host: professor presser, what do

you think about what you heard from justice ginsburg? guest: it was accurate. the issue still remains, does the court have the obligation to stop congress when it goes too far? what the lopez and morrison cases tell us, are two things. one, there must be limits on the federal government. two, the general power must remain with the state. if five members of the supreme court or more decide the basic protection affordable care act violates those two principles, they are bound to throw it out. those of us who favor federalism and liberty hope they will do just that. host: all right, professor amar and professor presser here with us for another hour debating whether or not the federal mandate is unconstitutional. showing you the sights and

sounds of the folks who have lined up early, days ago, in some cases, to get in to hear the court's oral arguments. today they debate the constitutionality of it. nine justices will hear from the lawyers on both sides of the issue, and then the court will release the audio of the oral arguments, out -- of the oral arguments about 1:00 p.m. floyd, a republican in indiana. good morning. caller: good morning. i get three areas of the constitution i like to question. we keep talking about the wheat farmer being limited to what he can grow. they're not only telling him that he has to grow it, but they're telling him what kind of wheat he has to grow.

if people are going to walk across the street or ride a bicycle across the road -- if a bicycle comes through the windshield, i have to pay for it because he has no auto insurance. host: respond if you could, because i want to get more calls in here. respond to a 1942 case and get both of your takes on that case. professor amar, we begin with you. guest: as stephen presser has mentioned several times, it is a case that affirmed very broad congressional power. i think that case really stretched the limits. i think the affordable care act is so much easier to uphold, precisely because at any given moment, lots of americans really are out of state. professor presser is one of the

most distinguished historians of the early american period. at the time of the founding, 90% of americans lived and died in a 50-mile radius. they did not leave their state. today that is just not the case. many of us at any given moment are out of state, and that creates new power for the federal government because we actually are, as individuals with goods and services, spilling over state lines. it was not true in 1790. host: mr. presser? guest: a couple of comments. your caller raised a comment about wicker vs. silber and. in that case the farmer was growing wheat. the defendant in that case was growing cannabis. hear an attempt is made to make you do something. that is the distinction that you could make between action and

inaction, one that was found persuasive by the florida federal judge who threw out the individual mandate. i think it may be one minute in principle that is valuable here and that may be turned to. the second point, akhil indicates the country is different from what it was in the late 18th century and that we do travel interstate and that is something that the government needs to take account of. the real question remains, even so, are we still committed to the principles of putting limits on the federal government and police powers must remain with the states? if you answer those questions in the affirmative, those acts go too far. caller: good morning. i have a question that i do not know the answer to. why is there such an uproar about having to go out and buy

insurance, but every person who goes on medicare, once you go on medicare, you are charged a monthly fee? i had no choice in it. they tell me it is $69 a month, every month, with my medicare. is that a tax? is that a payment to insurance companies? what is that taken out of my monthly check for? host: mr. presser? guest: i think that is sustained under the taxing power. host: professor amar? guest: i think this is a tax. it does not have to words -- to use the word "tax." "tax" is not used in the constitution, so i basically think this is a tax. even if it is not, i think if the government cannot -- can tax me and buy something for me, medicaid, why can it tell me,

amar, do it yourself? if i do not like that, i can vote against them because this is in effect taxation or bird or mandate with representation. if i do not like jury duty or militia duty or having to buy my musket and ammunition, or pay taxes, medicaid, i vote the bums out. that is how the framers set up. caller: francis, a republican from pennsylvania. host: -- caller: let's face the reality. healthcare is killing the industry. it is not in the law books -- is not the law books that will bring jobs back. you cannot pay insurance companies $1 trillion and expect company -- expect companies to stay in the united states and pay for health care. unless the court faces the fact

that america must have jobs, and nothing else will satisfy health care. thank you. host: tony on twitter says -- host: reneged, and independent from mississippi. good morning. caller: this is kind of a curve ball question. the federal government is now going to require people to get federal health care. but the hyde and and and and and and -- host: professor amar?

guest: a very interesting curveball question. even if it were, tie line is a congressional statute -- they can pass statutes that expand anti-discrimination laws like the ledbetter law, the first law president obama signed. they are also permitted to pass laws that cut back on earlier anti-discrimination laws. again, if we like them, we should vote them in and reelect them, and if we do not like them, we should vote against them. host: professor, a tweet from someone who wants to challenge you. "professor presser continues to reference powers vested in the states, but which state? where a person is or the state of residence? caller: -- guest: it could be

both. the question is, should the insurance problems be solved by the state and local governments but it does not talk about where you legally reside or where you find yourself. the idea of the social laboratories is the states experiment and find the best solutions. that is not me, that is the 10th amendment dictating that. host: another tweeted. health care used to be offered to get the best and brightest talent to work for you. what happens? -- what happened, i -- what happened? guest: we had so many people getting ready to go into desert storm with their teeth running out of their mouth, and we were being stalled. finally, the commander said let's go forward. we are going to europe, maybe they can help us.

if the u.s. jets bombed, we have to go out quickly. we cannot sit around getting our teeth taking care of or our health taking care of. it is important for national security. everyone needs to have their health care. you just cannot put it off. host: mr. presser, that was an argument made yesterday, that this is part of having a strong national defense. guest: it is an interesting argument. you could argue for the provision of all human needs and say it is a matter of national defense. i keep coming back to the same argument. the real question is, who do you want to decide how you provide for those basic needs? do you what the central government in washington, or do you want the state and local governments? we fought a war against the british empire in 1776 because they failed adequately to

understand what the needs of american liberty were. i think we are looking at the same problem here. guest: could i just jump in on that one? first of all, i would like to thank the caller for her service. it is an amazing insight that she has. the important brief that some of your callers might be interested in, the and this brief on the issue was written by a different of mine who tries to explain why health care is integrally connected to national security issues. his uncle happens to be lyndon johnson, so he comes by his national security credentials very honestly, and it is a very powerful breeze that triggers ago we needed to be pretty brief that 200 -- vaccines

coming the next attack made very well be biological. vaccines are going to help us with that and people will be more likely to have vaccines if they have preventive health care policies. the case that i mentioned, the case of the national bank was up held by john marshall on national-security grounds. we got the interstate railroad under president lincoln, the transcontinental railroad. president eisenhower gave us interstate highways on national- security grounds. national security is actually an important thing we have not talked about. we have been talking about mainly taxes and commerce. the professor's work on the and this grief is really i opening, and i commend it to all of your callers. host: professor amar, these are the friends of the court briefs that you are allowed to file? guest: yes, emeka s -- amicus

means friend to the court. host: mr. presser, to the justices read these briefs? are they swayed by them? guest: it is hard to know if they will read every single brief, but i signed two of them myself and i hope they will play it close attention to them. -- i hope they will pay close attention to them. there probably are not going to read all of them, but they may still have some kind of an impact, and we hope they will. host: bryan, a republican from oklahoma. caller: my take on this whole obamacare thing is, what about the states that have their own health care program? wouldn't the states lose the right to have their own health care program?

also, for me, as a christian, it is also attacking not only my religious beliefs but everyone else's religious belief. this health-care thing is an unconstitutional attempt, for other religions that believe that abortion is a sin, to have to pay for abortions. host: professor amar? guest: i am a christian, too. sometimes my taxes have to go toward things that are immoral. suppose it is a war that is going on, and i think it is unjust and and and christian war, but i can be taxed because the constitution says that if you are represented you can be taxed. if you do not like it, vote against the representative. host: next caller, from west

virginia. you are on. caller: i am a war veteran, and i get my health care taking care of. but i have been watching this debate about the individual mandate and everything and how it is costing other people to take care of the poor people. i have come to the conclusion that all the poor people are going to go on medicaid. if they cannot afford it, they are going on medicaid, and the people that are taking care of now, paying for it, they complain about paying for the poor people. they are going to wind up paying more anyway. through medicaid or what have you. what i really do not like about this individual mandate is that

i think it is opening the door to an encroachment on our life here in the united states, our individual freedoms, especially family freedoms. host: on that point, here is another tweet -- guest: well, the way i would respond to that is the way that akhil has periodically been responding. if this is at the state and local level, you have some input. you ought to participate in deciding how you are going to deal with what both of us think is a profound problem, and that is, what do you do with members of society who are not covered by insurance. how do you handle that? akhil is right. what a state is all about is a

community and providing for that community. but the real question is, how best and should you do that? should you dark -- should you do it through a faraway central government, or through your state and local bodies? a couple of your callers have mentioned, traditionally in this country the 50 states regulate insurance. each has an insurance commission. each state has been traditionally the body that deals with health care difficulties. this bill changes that, and i think it changes it in ways that in the long term would be disastrous. i am reluctant to abandon that. host: let me have you both preview tomorrow's arguments before the court, and talk about whether or not, if the affordable care act -- if it can survive -- or, i am sorry, if it does not survive, what happens to the rest of the law?

guest: that is a huge question. do you just try to strike out the individual mandate and leave the rest of the law in place, or do you have to strike down the whole law? is the individual mandate the heart of the law, or is it just a kidney that you can do without one as long as you have got the other? is it a pinky that you can sever off and the body remains intact? it is a very complicated issue, and for the courts to try to rewrite the law by surgically removing one thing -- it's such a big, complicated law, that is a problem. on the other hand, striking down the whole thing, the signature piece of legislation that basically one party ran on and did, and especially if it is done by a 5-4 vote, a partisan vote, all the republican appointees voting know why the

democrats vote yes -- voting no while the democrats vote yes, it can be avoided by voting in november. host: if it is deemed constitutional, what happens to congress' power going forward? guest: it can still legislate in the national interest. they will argue that they can -- to say a word or two about the stability question, a florida judge is the only one, the district court judge who so far has ruled that if the individual mandate goes, the whole piece of legislation goes. i think he actually got that one right. the reason for that is to fold. first, everybody when describing the act said that the individual mandate was the linchpin of the whole plan, that if you could

not compel all adults to participate in an insurance scheme, the resources to fund people who are not covered by insurance simply would not be there. you could not cover pre-existing conditions. you could not cover other medical problems insurance companies would like to turn people away from. further, congress did have the opportunity, as they have done in lots of different pieces of legislation, to say, well, the individual pieces of this legislation are severable. for political reasons, congress chose not to do that, and i think one of those political reasons was they understand that this really is a fundamental part of the scheme. it is true that the court can decide for itself what is severable and what is not, but i think the honest thing to do, if you believe the individual mandate is unconstitutional, is to throw out the whole thing.

host: professor amar, if this is deemed unconstitutional or constitutional, does it bring up past precedent and does it require -- will there be legal challenges to other laws? guest: sure. even this law. one caller early on, i believe from wyoming, was asking a question about too much delegation of power to the executive branch. that is not quite before the justices today, but -- federalism will continue regardless of how this case is decided. even if federal power is up held here, there are limits on what the federal government cannot do. in the cases, they are called lopez and morrison. in the constitution, it has to be a genuinely interstate problem. if it is a tax, it has to really

raise revenue. if it is a national security measure, it has to be connected to national security. those issues, even if obamacare is upheld, those lines will be important and judges will play a role in enforcing them. it will be an honor to be with steve because he is such a fair and reasonable and generous person. one other issue going forward that i want to bring to the surface, he has talked about redistribution and federalism. i think the honest thing that needs to be said is, this law is modestly redistributive. it is an effort to try to help people who cannot afford insurance, to subsidize them to some degree, and there are taxes as part of the system for those who cannot bear the cost to bear the cost. redistribution is important in our society, and going forward, the big issue is, are states individually able to do

redistribution well? it's hard because if a state tries to redistribute, poor people moving, rich people move out, states become welfare magnets. to some extent, at redistribution needs to be a federal function. that is why we have rules about medicaid, medicare, unemployment insurance, as part of the social safety net. i have talked about both sides of it, federalism, states' rights, and the redistribution side. host: time is winding down here on whether or not the individual mandate is unconstitutional. that is the topic of debate when the supreme court takes up oral arguments at 10:00 a.m. eastern time. we will continue to bring you the sites of the -- the sights and sounds of the court outside. also, as you know, we will air the oral arguments once the court releases them, iran 1:00 p.m. eastern time on c-span3, c-

span radio, and our website. suit, a democrat, in illinois. caller: yes, ma'am. i want to comment that when we abolish slavery, abraham lincoln did that on his own. he did not have to go to the united states supreme court. when they went on and signed the civil rights bill, they did go before the supreme court. if we had it your way, mr. presser, and the courts do not step in for something that is for the well-being of the entire country, we would still not have any civil-rights laws and the south would still be oppressing people that they think would be one way or the other. you also made a comment that the state of illinois, if you do not have insurance, we just make you pay. the reason you do that is because you have no programs because the state is in such a mucked that you cannot even afford the programs.

thank you. guest: a response? host: go ahead. guest: abraham lincoln did in fact promulgate the emancipation proclamation in the states that were at war with the nation, but it took the 13th amendment, which was a measure passed by the people according to the constitution to do away with slavery. your caller is quite correct, the civil rights laws were upheld by the supreme court, but i am not advocating the repeal of those. i am just reminding us that the constitutional scheme does not give congress the power to nationalize health care, in my view. i want a chance to blow some kisses and akhil's direction. it is an honor to appear with him as well. he has written what i believe to be the best single-volume history of the constitution, which, while it means a little

bit to the left, is still a fair treatment. host: tom, a republican from columbia, maryland. caller: i would like to bring up the fact that you talk about magnets of poverty here and what will be discussed later in reference to medicaid and the federal government forcing a 113% valuation of qualifications on the states for an individual to qualify for medicaid. to give a perfect example of the stay that does not -- of the state that does not give credible group faith would be the state of texas were the poverty level value waited at

24% for a family. for someone to qualify for medicaid in texas, that means $4,000 a year of income, or less than $4,000 a year of income. host: professor amar, can you weigh in on that? guest: we were just talking about the possibility that there might be a race to the bottom if individual states start to basically compete without any federal safety net or oversight. each state will encourage wealthy people to move in, promising lower tax rates -- tax rates to the wealthy, and trying to push out poor people with low benefits and a low safety net. each state might want to try to do that to protect its own position in the system. one thought is, if you are going to do some sort of redistribution of some safety net, that might be something you

will need to do at the federal level. your caller from illinois who brought up mr. lincoln and civil rights laws -- that connects to obamacare. we have not talked about -- we have talked about taxes and commerce and we talked about national security. yet another argument for obamacare that i actually believe -- once you believe that health care is a basic human right, and congress after the civil war was given special confidence to enact laws protecting basic human rights and human liberties, that is part of what it means to be free, to be free from your dependents, your physical needs. in order to be free, if you have diabetes, you need insulin. part of what is truly to be free and to have human rights is to have access basically to basic medical care.

i do not think the supreme court will buy that, but a lot of the rest of the civilized world believes that healthcare is a basic human right. >> stephen presser, on what the court will buy, here is a tweet -- host: i believe both of you have said, and our previous guest said, you cannot necessarily draw this down ideological lines. guest: that is quite correct. if you believe in the rule of law, you ought to hope that justices can put partisan political concerns aside. we are at an interesting point in the history of the republic were the two political parties fundamentally disagree about the nature of the constitutional system. the democrats believe that this piece of legislation is constitutional because they do not put much faith in the federal amendment -- i am sorry, and the 10th amendment,

federalism and local governments. what we have here is a fundamental debate over the meaning of the constitution. akhil and i differ about that. i would not buy his argument that it is the job of the federal government to take care of basic human needs. buy that argument, you have to give up the notion of the states possessing the primary power. my guess is that the supreme court will not decide this simply on political grounds, that they will in fact decide it based on their view of what the constitution requires. i'm quite comfortable with that. host: stephen presser, akhil reed amar, we appreciate your insight this morning -- you're inside this morning and talking to our viewers. you see those cameras bringing

you the sites of protesters from all stripes, left and right, gathering before the court. the party activists saying to one of the newspapers this morning that this is the big day. individual mandate on the docket. we want to go up there and talk to some of the protesters. >> people protesting for and against the law. tell us your name and why you are here. >> i am here to support health care reform because i feel like as a latina, i understand that we are at the higher end of being uninsured come and have at least health insurance to take care of ourselves. it is important for our communities, our families, and ourselves to be healthier. this impacts me personally because my sister just last week had a near-death experience at 23 years old. thankfully, she is covered under my mother's health insurance now

because of the affordable care act. she had an allergic reaction, almost died, and if it was not for her access to health care because she is on my mom's insurance, she would have died last year. i am extremely thankful for this legislation for the opportunity take care of her. we need to stand out here in solidarity with sisters and everyone here to make sure it is taken seriously, and that the administration understands the importance this has in our community. >> do you think the law goes far enough? >> i think for our community, it provides so much opportunity and access. not only do latinas have a higher rate of being uninsured, this provides us not only more opportunities to access that, it gives us access to community

health centers. it also increases funding for social competence a, -- for social competency. the affordable care act provides that funding, that framework that really puts the health of the community at the center, particularly impact the -- particularly impacting the latino community as well. >> why do you think people are so divisive? >> i think it provides the framework as a human rights, the same access to health care as a human right. we understand this will not only benefit latinas but the entire nation. because what affects latinas affect everyone. >> kelly, you are against the health care law. tell us why you are here. >> i am kelly and i am here to show that the government, the supreme court, the media, the world, that those of us who are

opposed to the law always will be and will never stop fighting. i am a latina as well, a completely different opinion on this. my mom was the breadwinner in our family, i am the breadwinner in my marriage. i was taught from a young age that as a woman, i should be strong and independent, and i do not need anybody else to provide things for me. i buy my own birth control, whatever things i want, i work for it. i buy my own insurance. i do what i need to do to take care of my family and my community. i do not need the government telling me how to do that. ultimately it comes down to whoever pays has the power, and i refuse to ever, ever give up my health care choices and health care decisions to a government bureaucrat or a corrupt politician. they are not going to make my decisions for me. >> do you have health care? >> i do. private health care to my employer. but if the individual mandate

does not get overturned, i will drop my health care and i will not pay the fine. they can come put me in jail, but i will not do it. >> why do you feel so passionately about it? >> it is a fundamental transformation. if the government can tell you to purchase a product from a private company. i was saying earlier that we agreed that forcing people to buy a private product from a company is completely un- american. i do not see where it stops after that. >> tell us your name and why you are here. >> i am dr. carol ferris, a physician. i am sort of part this person and part this person. i think that she and i agree that the individual mandate is unconstitutional. i do not think anyone should be mandated to purchase a defective product from corporate america. however, as this first young

woman said, she was really speaking more to the regulation of the insurance industry that was accomplished with the obama legislation. and while i have no problem with that in fact, it is better than nothing. but we could have accomplished that by simply regulating the insurance industry. we did not have to have a bill that spent $39 billion a day by the insurance industry lobbying congress every day for a year and a half. we did not have to do all of that. we could have simply regulating the insurance industry, but of course that is never going to happen because they have so much money to spend lobbying congress. >> dr., you are here -- doctor,

you believe it is a giveaway to the insurance industry? >> it is a giveaway to the insurance industry. it solidifies the insurance industry, and there is a problem. they are not -- they are the problem. they are not the solution. >> so you do not think the law goes far enough. >> absolutely not. i want to be clear that the vast majority of people behind me actually support a single payer system. they just drank the kool-aid and think that this is as good as we are going to be able to get, that this is a step in the right direction. i'm saying, no, this is a step backwards because of the individual mandate. it is an enormous step backwards because all of these people have the illusion that they actually accomplished health care reform. >> do you think the health care

reform that you're talking about will ever happen in the united states? you told me that you will leave the country and practice elsewhere. >> that is correct. i have been practicing for over 20 years, and i am weary of it. the insurance industry is just making the practice of medicine for me so unbelievably awful that i have decided to close my private practice and moved to new zealand where i can practice in a st. system of health care. i will continue to live -- in a sane system of health care. i'm not giving up by any means, i'm just having my cake and eating it, too. i want to practice sane, compassionate, good health care, and i will spend six months of the year working full time, advocating for a sane health

care system in this country. >> thank you all for talking with us. host: there you have it, three very different takes, the few protesters among the many on capitol hill, on the left and the right for and against this legislation. according to the "financial times," over $2.5 million has been spent by the group opposing this legislation, trying to influence this political debate. our coverage continues on c- span3 around noon today, with the release of the oral arguments coming from the court around one. -- of around 1:00. we will air them on c-span3 and c-span radio and our website. we want to spend the last 20 minutes with all of you, getting your take on any other public policy debate, or if you want to call in about the health care debate, you are welcome to do so

as well. what is happening today from "the washington post," around 9:00 a.m. this morning, how the economy is affecting -- with the release of the home price index at 9:00 a.m., the consumer confidence report at 10:00 a.m., and the supreme court begins their oral arguments at 10:00 a.m. pope benedict's second day in cuba takes him to cuba where he will meet with both castros. and the house judiciary committee holds an unofficial hearing on the shooting death of trayvon martin. this is "the washington post." "republicans dropped plans monday to vote on highway funding, citing insufficient

support for the measure. they want a senate bill that was approved two weeks ago." so the house is planning to, from what we read here, look at the budget proposal for 2013, tomorrow and thursday. in the senate, the republicans unexpectedly voted to move -- to go ahead with the energy debate in that chamber. legislation that would eliminate the average $2.4 billion a year in tax benefits that would be paid to the top oil companies for the next decade. republican saying they think this debate gives them the chance to highlight gas prices under president obama's watch. that is what is happening in the two chambers on capitol hill. outside of capitol hill, federal reserve chairman ben bernanke

will give his third of four lecture series at george washington. we will cover that around 12:45 p.m. eastern time if you are interested in watching that. the fed yesterday signaled low interest rates will remain in place for years to come, and that sent the stock market rising yesterday. here is the headline in "the wall street journal." "fed signals resolve on rates." overseas, we learned that syria has agreed to sign on to some sort of peace plan, that includes a ceasefire by syrian forces, a daily two-hour halt to fighting that -- so, open phones here this morning. pat, you are a democratic caller from ohio. caller: in 1975 -- in 1972 i was

diagnosed with a neuromuscular disease. i had insurance. when they found out my diagnosis, they canceled me. no one would give me insurance. as i got older, i had cancer twice. now i have a spinal condition, and it is disintegrating. i have 20s -- i worked for 27 years before i went on disability. i would just like to say that without insurance, i would not be here. host: michael, a republican from cincinnati, ohio. caller: i have a couple of comments here. a lot of people are trying to make an analogy to having to purchase car insurance in order to have a driver's license.

i find that to be completely inaccurate because you do not have to have a driver's license in order to live. i am honestly of the opinion that if this individual mandate is not struck down, it essentially creates a life license, you know, that you have to have from the federal government. second, it is best to have this done at the state level because what happens -- what happened to massachusetts under romneycare does not affect me in ohio. now this federal legislation will, and it will not cover as well as everybody thinks it will. host: democratic line,

pittsburgh, pennsylvania. caller: good morning. people need to wake up. life is too short because of this silliness. we are the only industrial country in the world that does not insure people. the man just said something about car insurance. they have stipulations on what you will pay for once you have it. so nobody is exempt whether you are in an accident or getting sick sometime in your lifetime. for those that are too young and too ignorant of the fact to know that anything can happen to you in your lifetime -- we need health care in this country. everybody needs it. if we break out with an airborne disease, do you think people will not want health care? host: on the other side of the argument, senate minority

leader mitch mcconnell will be giving a press conference today at 1:30 p.m. eastern time about the individual mandate argument. you can tune in to our coverage. go to c-span.org for more details. where are also -- the upper big branch mine explosion was the worst disaster in u.s. history in 40 years. the health education and work force committee will talk about lessons learned from that. here is "the miami herald," "a message of hope for cuba." the pope visiting there with the two castros. you probably heard about this yesterday. "surgery touted for type 2

diabetes." "two new clinical trials have shown that weight-loss surgery brings about dramatically greater improvement of blood sugar control in obese diabetics than standard diabetes care." the "los angeles times." president obama overseas on the nuclear summit. here is the front page of "the washington times" with a picture and the caption reading, "give me space." at one point he was heard saying, "i will have more flexibility after my election." former massachusetts governor mitt romney is saying that the exchange was alarming and troubling. he said the president already had agreed to give up too many u.s. nuclear-weapons in unsuccessful at purchase to

appease moscow. -- in unsuccessful efforts to appease moscow. here is the story in "the financial times." "if the president wants to make more cars in south korea -- sell more american made cars to south korea, nobody has told the average south korean. if you compare it to the european cars, the design is not that great." the president traveling overseas for the nuclear summit. "the washington post" front page story -- "obama allies at odds over jobs act." "exposing a new rift in relations between lawmakers. -- with democratic lawmakers and supporters amid his efforts

since the fall to mend those ties." the story, the lengthy story in "the washington post." rex, in colorado, what is on your mind? caller: i just heard a doctor complaining about how insurance companies need to be regulated. i do not see a problem with insurance companies. what i see a problem with -- i myself am a veteran, covered through the v.a. system. but my wife, every time she needs to go to a doctor -- we go and we see, for example, she had some procedures done, and they charge an outrageous amount of money. i forgot the name of the two systems over here. they quoted the same procedures and they told us that some of the things were redundant. so i do not see a problem with

the insurance companies, but i see problems with kaiser permanente a, reading with kaiser permanente -- with kaiser permanente, which is its own system. that is the problem. they need to be regulated. host: we go to maryland. sandy, a republican. caller: i wanted to make a comment on a woman who called in a while ago, a veteran of desert storm. first of all, i thank her for her services, all service people for their service to the country. she made a comment about service people having bad teeth and they should go to europe for health care. the government is supposed to be taking care of our service people and taking care of their health needs. if that is not working for the veterans, obviously obamacare will not work for the rest of us. the government takes care of

service people improperly, how will they take care of us? i think we should vote against obamacare. host: from illinois, a democratic caller. caller: i'm calling to let everybody know, i do not think anybody really knows history. we never really had a problem with the health-care system in this country until one of richard nixon's friends came up with a scheme to make money, at a profit. richard nixon, in the 1970's, signed into law the bill that would make it ok to profit off people's illness. that was one of the fine republicans, and that is what brought us to where we are today. because everybody is scrambling to make a profit. host: alright, in response to the syrian news with this comment.

host: we go to virginia, mary, an independent there. caller: my question is, if you have a child in your household under the age of 19 years old, you cannot get an independent policy written for this child. they have to be a dependent on the guardian or the parent. if the parents are on medicare, or if the parent is unable to get health care and there is overincome for this child to be eligible for the virginia medicaid program, how do we insure that child in the household? we cannot get a policy written for a child under 19 years old in the household is the father or mother is medicare or if the father is medicare and the

mother has no insurance. how do you insure your child? host: a republican from wells hill, new york. caller: i agree with the lady before. 26 years old and being on her parents' insurance is ludicrous. really, it is. not only that, they are talking about -- they are mentioning insurance on a car to people's health? they need to look at people voting, having no license or whatever. that is really ludicrous. host: gerry, a democratic caller from illinois. caller: i do not know if anyone saw the thing on "dateline" the other day. the make-believe insurance

stating they were providing health-care coverage when they were actually providing limited coverage. all the illegal activity that can go on when the government does not come in and regulate. i have to applaud obama. the individual mandate, i just do not see them boating down the other parts, the -- voting down the other parts, the pre- existing conditions. yes, we can criticize all of this, but if obama had not tried this, what with the republicans offer as an alternative? they can easily find ways to criticize him, but it would have been the status quo. health care insurance is bankrupting the people, that is absolutely true.

everyone needs to pay into the same pool. so i applaud obama. host: he referenced the issue of whether or not you say that the mandate is unconstitutional, whether or not you can throw out the law. tomorrow at 10:00 a.m. is where they will begin the arguments on that. for 1:00 p.m. to 2:00 p.m., the court will be talking about the issue of medicaid and whether or not expanding the medicaid under the affordable care act is a violation of state rights. randy, an independent college. caller: thank you for taking my call. i have a lot of opponents to the health care act. to a state that does not pay income tax, everyone who works -- who lives in america, wherever they work, pays federal

income tax. make sure that people can afford it and people are more broadly covered. i wonder, how would somebody address that. host: in other news, the arab summit has started in iraq. the first guests began to arrive monday. "iraq is congratulate itself for accomplishing a feat that few thought possible, posting an arab league summit, an event many iraqis hope will herald their country's reemergence as a regional power after decades of isolation, war, and occupation." "airline raises fares, blames high fuel costs." others followed suit in raising their prices. and then the federal trade commission is urging congress to enact internet privacy legislation.

the do-not-track law leaves cellphone policing with providers. and in "the new york times," the new york section -- congressman rangel to pay a $23,000 fine over misuse of rent law. we go to larry >>, a republican from missouri. good morning, larry. maybe a minute or so left. caller: are you talking to me? host: we are listening to you. go ahead. caller: i figured you were not listening to me. pretty well tapped. i just want to know if -- host: what are you trying to say? caller: do you know who the kenites